Norris v. Johnson

71 S.E.2d 540, 209 Ga. 293, 1952 Ga. LEXIS 456

• Court: Supreme Court of Georgia
• Decided: July 15, 1952
• Docket: 17914
• Status: Published

Opinions

Almand, Justice.

Since the passage of the Uniform Procedure Act, where a suit is filed in a superior court, which has general jurisdiction both in law and in equity, the petition should not be dismissed on general demurrer if it states a cause of action for either legal or equitable relief. Pardue Medicine Co. v. Pardue, 194 Ga. 516 (1) (22 S. E. 2d, 143).

“Equity will not enjoin the proceedings and processes of a court of law, unless there shall be some intervening equity or other proper defense of which the party, without fault on his part, can not avail himself at law.” Code, § 55-103. The defendant in a threatened foreclosure suit does not need the aid of a court of equity for the assertion of such defense as .that the purchaser has been damaged by the failure of the seller to have an insurance policy on the business transferred to the purchaser. Kanes v. Koutras, 203 Ga. 570 (47 S. E. 2d, 558), and cases cited.

In the present case, the petitioners, in addition to seeking to enjoin the threatened foreclosure proceeding, sought also cancellation of the notes and the security deed, and a decree declaring title to be in them. A common-law court, such as the Civil Court of Fulton County, may take cognizance of equitable defenses, but these courts can not grant affirmative equitable relief. Obviously, the relief which petitioners seek, such as cancellation and that the title to the property be decreed to be in them, can not be granted in the Civil Court of Fulton County. Hanson v. Williams, 170 Ga. 779, 781 (1) (154 S. E. 240).

Any right of the petitioners to set off the amount of the insurance policy against the balance due on the property would depend upon the validity of the agreement to transfer the policy; and under a fair construction this agreement amounted to an undertaking to have the insurance company transfer the policy. While, so far as appears from the allegations of the petition, the insurance company was under no obligation to transfer the policy, yet, if after a request so to do the company had refused to transfer it, this would be a matter of defense which might be asserted by the defendant.

Although Code § 20-309 provides that an impossible consideration is insufficient to sustain any promise, still it also provides that, if the expressed consideration be possible, though improbable, it is nevertheless valid. Accordingly, since the consideration to have the- insurance company transfer the policy was possible of fulfillment, it was sufficient consideration for the retention of the $75 advance payment.

Counsel for the defendant in error insist that the petition, which alleged that the defendant failed after repeated requests to transfer the policy, affirmatively showed that the petitioners could not rely upon the defendant to furnish such insurance coverage, and that the petitioners’ failure to obtain other insurance was the result of their own laches.

“Where by a breach of contract one is injured, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence.” Code, § 20-1410. But the provisions of this Code section can be invoked only by way of defense, and it is not necessary that a petition negative failure of the plaintiff to mitigate damages caused by the defendant. Southern Upholstering Co. v. Lieberman, 27 Ga. App. 703 (5) (109 S. E. 509); Mendel v. Converse & Co., 30 Ga. App. 549 (4) (118 S. E. 586). Where, as here, a petition alleges injury caused by the defendant’s breach of contract, and the exception is to an order sustaining a general demurrer, it can not be held as a matter of law that the plaintiff has not used ordinary care and diligence to lessen the damages.

It follows that the petition set forth a cause of action for damages- by reason of the failure of the defendant to have the insurance policy on the business transferred to the petitioners, and the trial court erred in sustaining the defendant’s general grounds of demurrer, and in dismissing the action.

Judgment reversed.

All the Justices concur, except Duck-worth, C.J., and Candler, J., who• dissent.